FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR 2015 12 3878
HILLOW and WALTER H. EDWARDS, JR., Attorneys at Law, for
BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
Defendant-Appellant, Thomas Dawson, appeals from his
convictions in the Summit County Court of Common Pleas. This
On December 14, 2015, Mr. Dawson checked into a hotel in
Fairlawn. That evening, he took one of his prescription
sleeping pills before heading to the hotel bar to order
dinner. In addition to ordering a meal, Mr. Dawson ordered
and drank three double shots of Crown Royal within
approximately one hour. He paid his bill at 8:32 p.m. and
then left the bar.
The hotel where Mr. Dawson was staying is connected to Hyde
Park Grille, a fine dining steakhouse that also has a bar
area. Sometime between 9:30 p.m. and 9:45 p.m., Mr. Dawson
entered the restaurant and sat down at the bar. He had in his
hand a plastic bag containing a bottle of water. While at the
bar, Mr. Dawson attempted to order a Crown Royal, but the
bartender determined that he was intoxicated and refused to
serve him. The bartender specified that Mr. Dawson's
speech was slurred and that he was saying things that did not
make sense. He, therefore, decided to call his manager so
that they could ask Mr. Dawson to leave the restaurant. The
manager arrived shortly thereafter and learned that Mr.
Dawson was a guest at the adjoining hotel. After verifying
that Mr. Dawson was, in fact, a guest at the hotel, he
offered assistance to help Mr. Dawson to his room. Mr.
Dawson, however, declined the offer. A short while later, he
removed the water bottle from his plastic bag, placed the bag
on his head, and walked out of the restaurant. Before closing
the restaurant, the manager warned the bartender at the
adjoining hotel not to serve Mr. Dawson.
At some point close to 11:00 p.m., Mr. Dawson returned to the
bar at his hotel and attempted to order a Crown Royal.
Remembering the caution she had received from the manager at
Hyde Park Grille, the bartender informed Mr. Dawson that the
bar was closed. Mr. Dawson then left the bar area.
Between 11:10 p.m. and 11:15 p.m., the manager at Hyde Park
Grille closed the restaurant for the evening, set the alarms,
and left immediately thereafter. At 11:18 p.m., someone
triggered the front door alarm. Multiple motion sensors were
then triggered inside the restaurant during the next few
minutes. The police arrived at 11:31 p.m. and discovered that
someone had used a large planter to break a glass panel in
the restaurant's front door. The door itself was
partially opened and shattered glass covered the entryway. As
the police went inside, they smelled smoke throughout the
restaurant and discovered that someone had turned on the
burners in the kitchen, causing the pans on top to heat up
and burn the grease inside them. They also discovered that
someone had broken glasses, torn down a large partition,
destroyed several pieces of crown molding, ripped wiring out
of the wall, and caused other damage. After a few minutes of
searching, they discovered Mr. Dawson wandering around inside
the kitchen area of the restaurant. At the time, Mr. Dawson
was shirtless and carrying a plastic bag that contained a
receipt from a nearby gas station. The police later found his
discarded sweatshirt at the gas station.
Mr. Dawson told the police that he had been inside the
restaurant for about 15 to 20 minutes. The police found that
Mr. Dawson was having difficulty coordinating his thoughts
and seemed confused. After learning he was diabetic, they
called the paramedics, and Mr. Dawson was taken to the
hospital. A detective interviewed him the following morning,
at which point Mr. Dawson admitted that he had used a planter
to break the glass in the door at Hyde Park Grille. He also
admitted that he had pulled down a picture frame after he
went inside. Mr. Dawson claimed that he could not remember
what happened after he went inside, but denied that he had
caused all of the damage inside the restaurant. He told the
police that he had felt compelled to enter the restaurant
because he heard a commotion inside or, possibly, a woman
A grand jury indicted Mr. Dawson on two counts of breaking
and entering, two counts of vandalism, and one count of
criminal damaging. Before trial, the court dismissed one
count of breaking and entering and one count of vandalism at
the State's request. The jury then heard the remaining
three counts and found Mr. Dawson guilty. With regard to his
vandalism count, the jury found that the value of the
property destroyed or involved did not exceed $7, 500. The
trial court sentenced Mr. Dawson to a total of nine months in
prison on his three counts. Additionally, it ordered him to
pay Hyde Park Grille $7, 499 in restitution.
Mr. Dawson now appeals from his convictions and raises eight
assignments of error for our review. For ease of analysis, we
rearrange and consolidate several of the assignments of
ASSIGNMENT OF ERROR ONE
TRIAL COUNSEL WAS INEFFECTIVE WHERE COUNSEL FAILED TO REFER
MR. DAWSON FOR PARTICIPATION IN THE INTERVENTION IN LIEU
In his first assignment of error, Mr. Dawson argues that he
received ineffective assistance of counsel because his
counsel failed to request on his behalf intervention in lieu
of conviction ("ILC"). We do not agree that Mr.
Dawson has established ineffective assistance of counsel.
To prove ineffective assistance of counsel, Mr. Dawson must
establish that (1) his counsel's performance was
deficient, and (2) "the deficient performance prejudiced
the defense." Strickland v. Washington, 466
U.S. 668, 687 (1984). To demonstrate prejudice, he must prove
that "there exists a reasonable probability that, were
it not for counsel's [deficient performance], the result
of the trial would have been different." State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraph three of
the syllabus. This Court need not address both prongs of
Strickland if Mr. Dawson fails to prove either one.
State v. Ray, 9th Dist. Summit No. 22459,
2005-Ohio-4941, ¶ 10.
"ILC is a statutory creation that allows a trial court
to stay a criminal proceeding and order an offender to a
period of rehabilitation if the court has reason to believe
that drug or alcohol usage was a factor leading to the
offense." State v. Massien, 125 Ohio St.3d 204,
2010-Ohio-1864, ¶ 9, citing R.C. 2951.041(A)(1).
"R.C. 2951.041(B) lists the criteria that a criminal
defendant must meet to be eligible for ILC. 'If an
offender satisfies all of the statutory eligibility
requirements for intervention, the trial court has discretion
to determine whether a particular offender is a good
candidate for intervention.'" Massien at
¶ 11, quoting State v. Geraci, 10th
Dist. Franklin No. 04AP-26, 2004-Ohio-6128, ¶ 5. Because
the ILC statute "is permissive in nature [it] confers
substantial discretion to the trial court to grant a
defendant's request * * *." State v.
Bellman, 9th Dist. Lorain No. 15CA010525,
2015-Ohio-2303, ¶ 10.
According to Mr. Dawson, his trial counsel was ineffective
because he failed to understand that he could seek ILC on Mr.
Dawson's behalf without the State's consent. Mr.
Dawson argues that the State made ILC a part of its initial
plea offer, but that offer was contingent upon his paying an
excessive amount of restitution that he could not afford. He
argues that he was prejudiced when defense counsel failed to
request ILC on his behalf, regardless of the State's
offer. He asserts that, had his counsel done so, he would be
in a treatment program rather than serving the harsher
penalty that the trial court ultimately imposed.
Even if defense counsel had requested ILC on Mr. Dawson's
behalf, it is entirely unclear from the record that the court
ultimately would have granted his request. R.C. 2951.041(B)
contains ten different eligibility requirements for ILC. Mr.
Dawson, however, has not discussed the applicability of any
of the ten eligibility factors. See App.R. 16(A)(7).
Nor has he addressed the matter of the trial court's
substantial discretion in light of certain statements that
the court made at the sentencing hearing. See
Bellman at ¶ 10
At the sentencing hearing, defense counsel strongly argued
for community control and a suspended sentence. Several
individuals also came forward to speak on Mr. Dawson's
behalf. The court listened to the arguments for lenity, but
then broached the subject of Mr. Dawson's presentence
investigation report. The court expressed its concern with his
prior criminal history, which included convictions for OVI in
Ohio in 2006, public alcohol intoxication in Kentucky in
2009, disorderly conduct in Michigan in 2014, and OVI in
Indiana in 2015. Likewise, the court expressed its concern
that Mr. Dawson had refused an offer to resolve his 2015 case
through a drug court in Indiana. The court noted that the
property damage Mr. Dawson had caused was extensive. Due to
the seriousness of his crime and his history of recidivism,
the court determined that a community control sentence would
demean the seriousness of his crimes. As such, it sentenced
him to a prison term and ordered him to pay restitution.
As this Court has repeatedly recognized, "[s]peculation
regarding the prejudicial effects of counsel's
performance will not establish ineffective assistance of
counsel." State v. Buzek, 9th Dist. Medina No.
14CA0011-M, 2015-Ohio-4416, ¶ 7, quoting State v.
Zupancic, 9th Dist. Wayne No. 12CA0065, 2013-Ohio-3072,
¶ 4. Mr. Dawson has made no attempt to explain why he
met each of R.C. 2951.041(B)'s eligibility requirements
or why, in light of the foregoing concerns, the trial court
nonetheless would have concluded that he was "'a
good candidate for intervention.'" Massien
at ¶ 11, quoting Geraci at ¶ 5. See
also State v. Jones, 6th Dist. Wood No. WD-12-053,
2013-Ohio-3562, ¶ 22. This Court will not construct an
argument on his behalf. See App.R. 16(A)(7);
Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998
WL 224934, *8 (May 6, 1998) ("If an argument exists that
can support this assignment of error, it is not this
[C]ourt's duty to root it out."). Because Mr.
Dawson's argument is purely speculative, he has not
established that he received ineffective assistance of
counsel due to his counsel's failure to request ILC
independently of the State's plea offer. See State v.
Dohme, 2d Dist. Clark No. 2016-CA-42, 2017-Ohio-561,
¶ 14-20. His first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED IN NOT ALLOWING THE APPELLANT TO ADMIT
EXCULPATORY EVIDENCE THAT PLACED HIM IN ANOTHER LOCATION AT